Harvey v. Florissant Police Department

Filing 5

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [ECF No. 2 ] IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of the Court's Civil Complaint fo rm. IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint on the court-provided form no later than twenty-one (21) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that upon submission of the amended complaint, the Court shall again review this action pursuant to 28 U.S.C. § 1915. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel isDENIED without prejudice. [ECF No. 3 ]If plaintiff fails to timely comply with this Memorandum and Order, the Court will dismiss this action without prejudice and without further notice. Signed by District Judge Catherine D. Perry on 11/16/17. (EAB) (Copy of Order and form sent to plaintiff on 11/16/17)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DERRICK JEROME HARVEY,
Plaintiff,
v.
FLORISSANT POLICE DEPARTMENT,
Defendant.

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No. 4:17-CV-2687 CDP

MEMORANDUM AND ORDER
Plaintiff Derrick Jerome Harvey seeks leave to commence this action without payment of
the required filing fee. Upon review of plaintiff’s financial affidavit, the Court will grant the
motion. See 28 U.S.C. § 1915(b)(1). Additionally, the Court will order plaintiff to submit an
amended complaint.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To
state a claim for relief, a complaint must plead more than “legal conclusions” and “[t]hreadbare
recitals of the elements of a cause of action [that are] supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for
relief, which is more than a “mere possibility of misconduct.” Id. at 679. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining
whether a complaint states a plausible claim for relief is a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense. Id. at 679.
(1)

When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 against the Florissant Police
Department. Plaintiff states that while he was in police custody for a traffic warrant, an unnamed
police officer assaulted him. Plaintiff states the assault was so severe he was rushed to the
hospital with a head injury, a bruised jaw, and a bruised hernia. For relief, plaintiff seeks
compensation in the amount of $100,000.00 for violation of his civil rights.
Discussion
Plaintiff has named only the Florissant Police Department as a defendant. He has not
named the police officer responsible for his injury as a defendant, nor does he name the police
officer in the body of his claim. Relevant precedent establishes that a department of subdivision
of local government is not a “juridical,” or suable, entity under 42 U.S.C. § 1983. Ketchum v. City
of West Memphis, Ark., 974 F.2d 81, 82 (1992). Therefore, plaintiff’s claim against the Florissant
Police Department fails as a matter of law. See Ballard v. Missouri, 2013 WL 1720966, *3 (E.D.
Mo. Apr. 22, 2013) (holding that “[p]laintiff’s claims against the City of St. Louis Department of
Public Safety, the St. Louis County Justice Center, the City of St. Louis Justice Center, and
MSI/Workhouse are legally frivolous because these defendants are not suable entities”).
In addition, even if the Court were to liberally construe plaintiff’s allegations as brought
against the City of Florissant and substitute the municipality as defendant, plaintiff’s allegations
would not state a claim of municipal liability. Liability under § 1983 may attach to a municipality
if the constitutional violation resulted from: (1) an official municipal policy; (2) an unofficial
custom; or (3) a deliberately indifferent failure to train or supervise. Monell v. Dept. of Soc. Servs
(2)

of City of New York, 436 U.S. 658, 691 (1978), City of Canton, Ohio v. Harris, 489 U.S. 378, 388
(1989); see also Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010)
(explaining that under § 1983, the plaintiff must demonstrate either that the municipality had a
policy or custom that caused the constitutional violation or that the municipality or municipal
employee exhibited deliberate indifference to the plaintiff’s constitutional rights by failing to
adequately train or supervise its employees) (citing City of Canton, 489 U.S. at 378-92). The
instant complaint does not contain any allegations that a policy or custom of the City of Florissant
was responsible for the alleged violations of plaintiff=s constitutional rights. As a result, the
complaint fails to state a claim upon which relief can be granted against defendant City of
Florissant.
Because of the serious nature of the allegations in the complaint, the Court will not dismiss
the case at this time. Instead, the Court will give plaintiff the opportunity to file an amended
complaint. In his amended complaint, plaintiff shall name as defendants (in their individual
capacities) the person or persons directly responsible for his injuries.

Plaintiff shall have

twenty-one (21) days from the date of this Memorandum and Order to file his amended complaint
on a court-provided form. Plaintiff is warned that the filing of an amended complaint replaces the
original complaint, and claims that are not re-alleged are deemed abandoned. E.g., In re Wireless
Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). If plaintiff
fails to file an amended complaint on a court-provided form within twenty-one (21) days, the
Court will dismiss this action without prejudice.
Plaintiff=s motion for appointment of counsel will be denied at this time. Although
plaintiff has alleged serious claims, none of his claims have, of yet, survived frivolity review.

(3)

Thus, counsel is simply not warranted at this time. Plaintiff may, of course, move for counsel at a
later time, if it appears that counsel is warranted if this case progresses.
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma pauperis is
GRANTED. [ECF No. 2]
IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of the Court=s
Civil Complaint form.
IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint on the
court-provided form no later than twenty-one (21) days from the date of this Memorandum and
Order.
IT IS FURTHER ORDERED that upon submission of the amended complaint, the Court
shall again review this action pursuant to 28 U.S.C. § 1915.
IT IS FURTHER ORDERED that plaintiff=s motion for appointment of counsel is
DENIED without prejudice. [ECF No. 3]
If plaintiff fails to timely comply with this Memorandum and Order, the Court will
dismiss this action without prejudice and without further notice.

Dated this 16th day of November, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

(4)